Dance v Savery and others

Rights of common – Grazing rights – Commons Registration Act 1965 – Commons Act 2006 – Claimant applying to register rights under 1965 Act over three parcels of land – Claimed right to graze defined number of livestock on two parcels with straying rights over third – Entry for parcel confirmed as right to graze on that parcel – No reference to other two parcels – Whether registration conferring stand-alone right to graze defined number of livestock on third parcel – Whether right shared among all three parcels – Judgment given for defendantsIn 1969, the claimant applied to register certain rights of common over three parcels of land on Dartmoor, pursuant to section 4 of the Commons Registration Act 1965. The claimed rights were to graze 56 bullocks or ponies and 224 sheep over two of the parcels with straying rights over the third. Provisional entries were made in respect of each parcel. The entry for the first parcel showed a right to graze the defined livestock over that and the second parcel, together with a straying right over the third. The entry for the second parcel mirrored those terms; that for the third identified a right to stray the defined livestock onto that parcel from the other two.Objections to the provisional entries were referred to a commons commissioner. In 1983, he confirmed the right to graze on the first two parcels, and in 1985 he gave his decision on the third. He expressed the view that a right to stray was a popular way of describing a right of common by reason of vicinage and that such a right was not registrable under the 1965 Act. Following a concession by the landowner, the commissioner modified the wording of the entry for the third parcel, providing a right for the defined livestock to “graze” rather than to stray on that land, and deleted any reference to the other two parcels.A dispute arose as to the proper interpretation of that entry. The claimant maintained that he enjoyed a grazing right for 56 bullocks or ponies and 224 sheep over that parcel, separate from any right that he enjoyed over the other two. The first defendant insisted that the right was shared across all three parcels, so that the claimant could not graze more livestock on the third parcel than he would have been able to by sharing his rights over the other two. In support of his case, the claimant argued that where a right was divided the register invariably said so, as was the case with the entries for the other two parcels. The first defendant contended that section 15 of the 1965 Act required only that the maximum number of animals be entered on the register, not that any other applicable limitation or qualification should be entered.Held: Judgment was given for the defendants. The purpose of the 1965 Act, now replaced by the Commons Act 2006, had been to establish definitive registers of common land and to record details of rights of common. The Act had been devised on the basis that each register unit was to be self-contained and that the land over which a right was exercisable would be particularised as either the entire land included in a register unit or a part of that land. There was no provision for recording that the right extended to land comprised in some other register unit. Accordingly, rights to graze a limited number of animals over two or more register units presented a difficulty under the scheme of the 1965 Act. The commons commissioners had often allowed an entry for one unit to contain references to others. That was a convenient way of giving notice to a reader of the register that the right was also being claimed over those other units, but on the understanding that any such reference was otherwise surplus to the registration and of no legal effect. That approach was correct: the inclusion in the particulars of a right of common in respect of one register unit of a purported right to graze over another could not confer any right over that other unit under the 1965 Act.The right to graze a defined number of animals could be limited by the particular circumstances in which the right had come into existence; for example, where it was subject to customary constraints as to the time of year at which stock could be turned out or where the right subsisted over two or more units and the limit applied to them all. In the past, the commissioners had approached the issue on the basis that the possibility of such restrictions was specifically contemplated by section 15 of the 1965 Act. That section required an entry to state a definite number of animals as an upper limit above which the right to graze did not extend, but enabled a party to claim that the number of animals grazed at any time was excessive notwithstanding that it was below the upper limit. That view was correct and was consistent with the commissioners’ approach of including on the register for one unit a reference to another where the claimed right was divided between the two. The omission of unnecessary information concerning a right claimed over another unit could not lead to a final registration that conferred an unqualified right to graze where no such right had previously been enjoyed.The position remained the same following the introduction of the 2006 Act. That Act did not purport to increase rights or to confer them where none had existed prior to the date of its commencement. Section 18, although providing for the conclusiveness of the register, preserved any constraint on the exercise of a right of common even though such a constraint did not appear on the register. Relevant constraints included those arising from local custom and those inherent in rights that were divided between two or more register units.It followed that no inference could be drawn from the commissioner’s decision in respect of the third parcel that he had intended to confer an absolute and independent right to graze the defined livestock on it. The claimant had not claimed to be entitled to any such independent right and the commissioner had not intended to confirm one. The right described in the entry for the third parcel was divided over all three parcels. The claimant was entitled to graze the defined livestock over the third parcel only in so far as he was not already grazing the same livestock over the other parcels.Mark Wonnacott (instructed by Eric Cowshill Solicitors, of Ivybridge) appeared for the claimant; Jonathan Small QC (instructed by Harold Michelmore & Co, of Newton Abbot) appeared for the first and second defendants.Sally Dobson, barrister